Petro v. State

• Citation: 184 N.E. 710,204 Ind. 401
• Decision Date: 20 February 1933
• Docket Number: No. 25994.,25994.
• Parties: PETRO v. STATE.
• Court: Supreme Court of Indiana

204 Ind. 401

184 N.E. 710

PETRO

v.STATE.

No. 25994.

Supreme Court of Indiana.

Feb. 20, 1933.

Appeal from Brown Circuit Court; Fremont Miller, Judge.

Aleck Petro was convicted of rape in the first degree, and he appeals.

Reversed, with directions.

Geo. W. Long, of Columbus, for appellant.

James M. Ogden, Atty. Gen., and V. Ed. Funk, Deputy Atty. Gen., for the State.

HUGHES, Judge.

This was an action by the state of Indiana against the appellant, Aleck Petro, on a charge of rape in the first degree under the Acts of 1927, c. 201, p. 576. The appellant was tried by a jury, found guilty, and was sentenced to the Indiana State Prison for life.

The appellant assigns as errors the following: (1) The court erred in overruling appellant's motion for continuance; (2) the court erred in overruling appellant's motion for a new trial; (3) the court erred in fixing the punishment, in that the punishment fixed by the court is illegal and in excess of the punishment fixed by the statute under the charge in the affidavit; (4) the punishment fixed by the court is excessive.

One of the reasons set out in the motion for a new trial is “that the court erred in overruling defendant's motion for a continuance.” The affidavit against the defendant was filed on February 20, 1930, he was arrested on the 21st day of February, 1930, and tried by a jury on the 25th day of February, 1930. The motion filed by the defendant on February 25, 1930, for a continuance is as follows:

“Aleck Petro being duly sworn upon his oath, deposes and says that he is the defendant in the above entitled cause of action; that an affidavit was filed against him charging the commission of the offense on which he is to be tried in said cause, on February 20, 1930; that this affiant did not know of the filing of said affidavit until he was arrested on Feb. the 21st and that he has been held a prisoner in the Brown County Jail at Nashville, Indiana, ever since said time.

“That by reason thereof that he has been compelled to rely and has relied upon his attorneys to secure the evidence to defend him in the trial of said cause.

“That he secured the employment of George W. Long, an attorney practicing at the bar of this court to represent him herein on February 21, 1930 and he secured the services of A. T. Conner, another attorney, late in the afternoon of February 21, 1930.

“That the daughter of this defendant, Alice Petro, 17 years of age and his son, Brian Petro, 11 yrs. of age, at the time this defendant was arrested were held in the Bartholomew county jail at Columbus, Indiana. That said Alice Petro and said Brian Petro are material witnesses for this defendant in making his defense in above entitled action because they are in possession of certain facts as defendant is informed and believes that will be material to his defense in said cause; that said witnesses are children of this defendant and lived with him at his home up to about the time they were arrested shortly before said 20th day of February, 1930. That if said children related the facts that their testimony will show without question that said defendant is not guilty of the charge made against him herein but that this defendant because of the fact that he has been unable and of the fact that his attorneys have been unable to talk with said children as is hereinafter set out is unable to set out in this affidavit the exact facts that said children will testify to. That said children, Alice Petro and Brian Petro, are acquainted with Ruby Mikesell and Catherine Mikesell the persons named in the affidavit now on file against this defendant and with whom and against whom he is charged in said affidavit of being guilty with the crime alleged therein against him, and that said children know that said defendant was never with said Ruby Mikesell and said Catherine Mikesell, alone and he is not guilty of the crime charged in the affidavit and that he believes that his said children, above named witnesses will so testify truthfully if his attorneys are permitted to interview them; that said children, above named witnesses, know the names of other people and witnesses who can testify to the same facts, whose names this affiant does not know but that it is too late at this time for this affiant and defendant to secure the names of said other witnesses in order to procure their attendance at the trial on this date and to learn the facts that they will testify to in time to use them at the trial of this cause.

“That this affiant has been and that his attorneys have been unable to see said Alice Petro and said Brian Petro to talk to them and to learn what they know concerning the facts and evidence in this cause and to make preparation for his defense herein for the following reasons:

“That this affiant has been confined in said Brown county jail ever since his arrest on the charge herein as above set out, that his said attorneys, Geo. W. Long and A. T. Conner on the morning of Saturday, February 22, as soon as they could do so after their employment as such attorneys went to the Bartholomew county jail where said Alice Petro and said Brian Petro were held at said time by the sheriff of Bartholomew county and asked to talk to said witnesses; that said sheriff of Bartholomew county at said time refused to allow said attorneys to talk to said witnesses and stated to them that he had been instructed by the state highway policeman, Carl Losey who had placed said witnesses in said jail not to permit anyone to talk to them.

“That following said refusal of said sheriff to permit said attorneys to talk to said witnesses they filed a petition with the Bartholomew circuit court asking that said sheriff be directed and ordered to permit said attorneys to talk with said witnesses and that shortly before noon on February 22 that said court did so order and direct said sheriff to so permit said attorneys to see and interview said witnesses.

“That this affiant files herewith a certified copy of said order so entered by said court.

“That shortly after one o'clock on said day that said attorneys went to said jail to talk to said Alice and Brian Petro in accordance with said order and were then informed by said sheriff that said Carl Losey, state highway policeman, had taken said witnesses Alice Petro and Brian Petro with him away from said jail and to Nashville, Indiana.

“That said attorneys thereupon went to Nashville, Indiana and there saw said state highway policeman, Carl Losey, and Deputy Prosecuting Attorney John Wright and at the same time learned that said Carl Losey had said witnesses in his possession. That said witnesses at said time were not in the Brown county jail but were kept secreted by said Carl Losey and that said Carl Losey and said John Wright at said time notified said attorneys that they would not permit said witnesses to talk to them unless they did so in the presence of said Carl Losey and of said deputy prosecuting attorney of the Brown circuit court; that said Carl Losey has ever since said time kept said witnesses with him and under his control and he has refused to allow or to permit said attorneys to talk to said witnesses or to see or interview them. That this defendant files affidavits of other persons herewith to substantiate the facts herein set out.

“That by reason of the premises, that this affiant above named defendant has been unable to make preparation for his defense in above entitled cause and is wholly unprepared to go to trial therein. That the interest of justice requires that this cause be continued to give this affiant and defendant an opportunity to prepare for his trial and to secure the names of witnesses who can testify in his behalf so that he can make an adequate defense against the charges herein.

“That if this cause is continued until the May term of this court that this affiant will be by said time able to make proper preparation for his defense herein and that by said May term that he will be able to secure the names of witnesses by whom he will be able to show that he is not guilty of the crime against him herein. That this affiant is not able to secure such evidence from any other witnesses other than said Alice Petro and said Brian Petro.

“This affiant, above named defendant, further shows that he is now confined in the Brown county jail on said charge because of his inability to give bond herein and that the interest of the state of Indiana will be in no wise jeopardized by said continuance.

“Wherefore this affiant prays a continuance of the trial of this cause until the May Term of this court and for all other proper relief.

“Aleck Petro, by his mark.”

A supporting affidavit was filed the same day by George W. Long and A. T. Conner, attorneys for the defendant, as follows:

“George W. Long and A. T. Conner being duly sworn each upon his oath, deposes and says:

“That they are attorneys for above named defendant Aleck Petro; that they were employed by said Aleck Petro on February 21, 1930 and that as soon as possible thereafter early on the morning of February 22, 1930 they went to the Bartholomew county jail where the children of said defendant, Alice Petro and Brian Petro were held at said time by the sheriff of Bartholomew county, Indiana, and asked to talk to said witnesses, Alice Petro and Brian Petro; that said witnesses were and are material witnesses for said defendant in the trial of said cause and that it was necessary for said attorneys to see said witnesses and to talk to them in preparing for said trial for the reason set forth in affidavit of said defendant filed herewith.

“That said sheriff of Bartholomew county at said time refused to allow said attorneys to talk to said witnesses and stated to them that he had been instructed by the state highway policeman, Carl Losey, who had placed said witnesses in said jail not to permit anyone to talk to them.

“That following said refusal of said sheriff to permit said attorneys to talk to said...